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Victors and judges

When Hermann Goering, the most senior of the National Socialist politicians captured by the Allies at the end of World War Two, was handed a copy of the statement indicting him of war crimes and crimes against humanity, he scribbled on the margins: 'The victor will always be the judge and the vanquished the accused'.

The guilt of such individuals ... is so black that they fall outside ... any judicial process.

He was not the only person to express this thought. The idea that the war crimes trials at the end of World War Two were expressions of a legally dubious 'victors' justice' was not confined only to those who were its victims. Even on the Allied side there were senior legal experts who doubted the legality of the whole process. The four victorious Allies themselves argued for months over the vexed question of who to put on trial and on what charges.

The origin of these arguments lay much earlier in the war years, when the western Allies first began to think about the treatment to be meted out to Adolf Hitler and the rest of the German leadership if the Allies won the war. The inclination of the British government and of the prime minister, Winston Churchill, in particular, was simply to shoot Axis leaders out-of-hand, as outlaws, once they were caught.

The plan was to allow senior officers in the field to confirm the identity of the prisoner, and then to execute them by firing squad within six hours. A long list was drawn up of those deemed to be 'war criminals'. No attempt was made to identify their specific crimes. 'The guilt of such individuals,' announced Britain's foreign secretary, Anthony Eden, in 1942, 'is so black that they fall outside ... any judicial process.' At the end of the war in Europe, in May 1945, the firing-squad plan was still the preferred option of British leaders, including Churchill.

Neither the Soviet nor the American government was happy with the British suggestion. Though both states shared the view that they faced an evil regime, they both favoured some formal process of law, the Soviet Union because it was felt necessary to display publicly the guilt of the accused, the United States because there existed powerful voices in Washington decrying the idea that democratic states should simply murder their enemies.

No military commanders had been put in the dock alongside their civilian masters before.

There then followed six months of wrangling over who should be put on trial, and on what charges, and where. There was no precedent. No other civilian government had ever been put on trial by the authorities of other states. No military commanders had been put in the dock alongside their civilian masters before.

The category of war crime, defined under international agreements made earlier in the century, covered specific violations of the rules of war (such as the murder of prisoners of war, or the shooting of hostages), but these were enforced against the immediate perpetrators - who were in most cases junior officers and regular soldiers. What the Allied powers had in mind was a tribunal that would make the waging of aggressive war, the violation of sovereignty and the perpetration of what came to be known in 1945 as 'crimes against humanity' internationally recognised offences.

Unfortunately these had not previously been defined as crimes in international law, which left the Allies in the legally dubious position of having to execute retrospective justice - to punish actions that were not regarded as crimes at the time they were committed.

... the western Allies decided not to include the bombing of London, Warsaw and Rotterdam as a war crime ...

This was a compromise of several kinds. Conspiracy was preferred by American lawyers, but it had no basis in French or Soviet or German law. The Soviet side was not much interested in western legal traditions (including the presumption of innocence) but had to accept them to give the trial the semblance of legal propriety.

Most difficult of all, the western states had to accept Soviet insistence that only Axis aggression was covered by the new legal instruments. Otherwise the Soviet government would have been in the dock as well, for carving up Poland in September 1939 and attacking Finland three months later.

The western powers also knew that Stalin's regime was guilty of many of the crimes against humanity laid out against the German prisoners, but were forced to keep silent in order to maintain a public face of collaboration. For their part, the western Allies decided not to include the bombing of London, Warsaw and Rotterdam as a war crime, since they had engaged in massively destructive bombing campaigns of their own.

It was very uncertain which among the large cohort of prisoners ought to be treated as a major war criminal. The Allies' poor understanding of the nature of the Third Reich meant that the preliminary lists drawn up left out key figures (Heinrich Müller, head of the Gestapo - Adolf Eichmann, head of the Gestapo Jewish Affairs office - Otto Thierack, the vengeful SS Minister of the Interior - and so on) while focusing on individuals who had played along with Hitler, but had clearly had little or no influence on foreign policy or waging war.

One of those eventually arraigned at Nuremberg was Hitler's former economics minister, Hjlamar Schacht, who had actually been liberated by Allied forces in a German concentration camp. He was put on trial because he had been a well-known figure in the 1930s, and one who conformed to the Allies' stereotype of the scheming Prussian capitalist.

In the end the Allies chose defendants in ways that can be regarded as nothing other than arbitrary.

So poorly informed were the prosecution teams that General Erich von dem Bach-Zelewski, the man who led the atrocious Einsatzgruppen (special action groups) on the Eastern Front, not only avoided an appearance in an Allied court but was actually found to be a helpful witness, incriminating others. He was eventually tried by a West German court.

In the end the Allies chose defendants in ways that can be regarded as nothing other than arbitrary. The suicides of Hitler, Heinrich Himmler and Joseph Goebbels, and the death of Martin Bormann, meant that the central criminal group evaded justice. The only major party politician to be charged was Hermann Goering.

Others appeared in the dock because they had fallen into Allied hands, or because they were made to represent a wider constituency - Schacht stood for the economy, Field Marshal Wilhelm Keitel the armed forces, the anti-Semite Julius Streicher for the racist circles in the party. At least one of those indicted, the armaments minister Albert Speer, had explored the possibility of assassinating Hitler in 1945, a fact that may explain why he was eventually sentenced to prison rather than executed.

Justice of a kind

Once the charges and the criminals had been fixed, the trial opened on 20 November 1945. There were hopes that it would last for no more than a few weeks so that it would maintain public interest and show Allied justice to be swift and inexorable. In practice the trial lasted until October 1946, by which time popular interest had waned.

... three of the 22 defendants were acquitted ... and 12 were sentenced to death ...

The long time-span exposed many of the problems inherent in the whole process. The right to defence produced endless arguments about jurisdiction and responsibility in the governing structures of the Third Reich. The legal squabbles, while in themselves an indication that the Tribunal was no kangaroo court, tried public patience. In the end, three of the 22 defendants were acquitted, including Schacht, who had volubly protested his innocence throughout, and 12 were sentenced to death by hanging.

Over the next three years a whole series of lesser trials were held of soldiers, officials and industrialists accused of complicity with the actions deemed by the first trial to be criminal. By 1949, when a new German state was reconstituted, the German authorities themselves took over the task of prosecuting those who had so far eluded the courts.

Legacy

Though the trial of the major war criminals in 1945 was legally flawed, its primary purpose was political. Justice Robert Jackson, who led the American prosecution team, saw the trial as an opportunity to lay down clear lines of conduct in international affairs and in the acceptable treatment of a population by its own government. The fact that these rules had to be laid down in collusion with the Soviet Union, which had violated most of them in the previous ten years, was glossed over.

There is little sense, either then or now, that justice of a kind was not done at Nuremberg.

The evidently arbitrary character of the Tribunal was overlooked by the accumulating evidence that the National Socialist regime had been responsible for crimes of exceptional proportions. There is little sense, either then or now, that justice of a kind was not done at Nuremberg. The international rules manufactured in the course of the trial preparations formed the basis for the Convention on Human Rights and the Genocide Convention which followed a few years later. Condemnation of aggressive war was inscribed in the constitution of the United Nations.

The legacy of the trials was nevertheless ambiguous. None of the new legal instruments has prevented the abuse of human rights, racial killing or aggressive war since 1945, though they have provided a legal framework against which the behaviour of modern states can be measured. Many perpetrators evaded justice entirely, thanks to the often chaotic and improvisatory nature of the whole process of investigation and trial.

Crimes committed on the Allied side were simply ignored, because their publicity might poison inter-Allied relations. Goering was right to see international judgement as a function of Allied power and German helplessness. But for all that, the trials reflected legal norms that were embedded in the natural law tradition, and were not mere expressions of vengeance. It has been better for the history of the last 60 years that Churchill did not get his way.

About the author

Richard Overy is professor of history at the University of Exeter. His publications include Russia's War (1998) , The Battle (2000) and Interrogations: The Nazi Elite in Allied Hands (2001). For a lifetime's contribution to military history, Professor Overy was awarded the Samuel Eliot Morison Prize by the Society for Military History in 2001.

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